Gagging to know the truth?

Heard the one about the “family man” Premier League footballer who had an affair with an ex-“star” of Big Brother? Well you probably have if you are able to master an internet search engine, but details of their tryst cannot be reported in the mainstream press due to him successfully obtaining an injunction preventing the fully story from being revealed.

Leaving aside the issue of whether this tawdry tale should be considered newsworthy, why was this footballer able to stop the story from being published when the likes of John Terry, Peter Crouch and (for those with longer memories) Garry Flitcroft were not so successful?

The answer can be found in the European Convention on Human Rights which the UK signed up to in 1998. Article 10 of the Convention protects the “right to freedom of expression” including the “freedom to impart information”. However, under Article 8, an individual has the right to “respect for his private and family life”. Clearly there is a conflict between these two Articles, and the Courts will generally be required to weigh up which of these competing interests is more legitimate in deciding whether to grant an injunction or not.

In the case of John Terry, despite initially being granted a temporary “super injunction” (which prevented the press from reporting that an injunction had even been obtained), the Judge lifted the injunction as he deemed it “not necessary or proportionate having regard to the level of gravity of interference with the private life of the applicant”. That is to say that freedom of expression (of the press) was more legitimate than the possible interference with Terry’s private life. It seems that the key factor in making this decision was that Terry was less concerned with “personal distress” than the impact of adverse publicity on his reputation and more particularly, the commercial effect that the revelations would have on his sponsorship deals.

In the case of our unnamed footballer mentioned above, however, the Judge must have believed that the main motivation in seeking an injunction was to protect the player’s family and not his own image. This is particularly the case where a player’s children are likely to suffer bullying at school if details of the story are revealed.

It remains to be seen how this area of law will develop in the future. The furore surrounding the latest raft of injunctions and political unease at the judiciary “establishing a new privacy law via the back door” has put this issue at the forefront of the media agenda. David Cameron himself has waded in to question whether Judges should have the power to issue “super injunctions”. It is unlikely that the government will seek to introduce a new privacy law in the near future, but it may be that the new Defamation Bill (currently in consultation until June 2011) is used to re-assert the legislature’s authority over the judiciary.

Adam Leadercramer is a senior lawyer at onside law, a boutique law firm specialising in the sport and entertainment sectors. Adam regularly advises players, clubs, third party investors, agents and others involved in the football industry, and is a Millwall season ticket holder.